Alan Young is an associate professor at Osgoode Hall Law School at York University. He has worked with the federal government to recognize cannabis in the medical drug schedule and led a number of constitutional challenges on drug and morality laws.
For the past 25 years I have worked to change Canada’s archaic legal approach to marijuana use. Having little faith in the political process and its partisan posturing, I turned to the courts and the Charter of Rights to challenge the constitutional validity of many laws that criminalize morally controversial activity among consenting adults.
Despite achieving enormous success in developing a constitutional protection for medical marijuana, the basic foundation of the marijuana prohibition remained intact after the flurry of court cases. Having grown weary of battle, I was thrilled when the Liberal party pledged to legalize marijuana in 2015. Of course, political promises are unenforceable and, in the past, being on the verge of reform often ended with a quiet re-entrenchment of the status quo. So my enthusiasm has been tempered by a strong dose of cynicism.
As the government crawls towards legalization with the appointment of yet another task force, my tempered enthusiasm has started to wane, replaced by dismay. Everywhere I look I see countless interested parties and stakeholders lining up to cash in on cannabis dollars.
Twenty years ago I predicted that cannabis would be legalized when governments and corporate entities realized the untold monetary treasures to be reaped upon legalization, just as gambling was legalized in the 1990s to reap billions of dollars in tax revenues. And now, licensed medical cannabis producers, drug stores, provincial governments, labour unions, marijuana dispensaries and predatory stock brokers all want a share of the market. Who can blame them? Cannabis is a capitalist’s dream considering the unprecedented economic opportunity of a ready-made customer base of millions.
I have always seen marijuana as a benign and mild intoxicant, and the less state regulation the better. However, I understand that some Canadians, and the government, see greater risks, and it is unlikely we will enter a legal world of grow-your-own, share with friends and sell small amounts to others. Canada has a tradition of overregulation and one can already sense that the government is poised to place a myriad of restrictions on production and distribution. Invariably, the more complex the regulatory framework, the more likely the market will be overrun by multinational corporations, Crown agencies and the heroes of big business. This completely undercuts the 1960s idealism which spawned our taste for the uplifting effects of marijuana; however, idealism always plays second fiddle to the realism of money markets.
Of greater concern is the fact that this fixation on economic issues and models of distribution has obscured the basic justification for promoting legalization as a sound policy choice for Canada. At its core, legalization is premised on three interrelated beliefs: 1) the activity is not sufficiently harmful to warrant criminalization; 2) using the blunt instrument of the criminal law justice system to eradicate the activity has been proven to cause more harm than good; 3) the activity has become so prevalent that the law has been rendered ineffective.
So in moving down the road to legalization, the focus should not be on the mode of distribution and who will reap the economic benefit. Although this may be important to the venture capitalists and consumers, a more fundamental question must first be addressed by government: What should the proper legal response be to the multitude of pot consumers who have no interest in, and perhaps even an aversion to, corporate marijuana?
It must be recognized that a vibrant underground cannabis culture has been evolving for decades. If the government maintains the taboo on self-production and local dispensaries, there will remain hundreds of thousands of cannabis users and producers who will refuse to go to the liquor or drug store to purchase cannabis. If excluded from the new market, the underground will continue to flourish, and this government must decide what to do with the outliers. If the fallback position is that anyone who does not comply with the rules of the market must be dealt with by the criminal justice system, then we have not achieved legalization.
The outliers cannot be considered criminals solely for running the very same business operations sanctioned and exploited by the government and corporate Canada. If a basic premise of legalization is that the activity is not sufficiently harmful to warrant jail and a criminal record, it cannot be converted back into criminal conduct simply because it is being done without proper licensing. Of course, some type of regulatory offence will have been committed, akin to fishing without a licence, but once a government gives the legal seal of approval to an activity it loses the moral right to condemn and criminalize the renegades operating without a licence.
For the most part, the underground cannabis culture has been occupied by pot-heads so driven by their love of cannabis that they can carve a bong out of cucumber in thirty seconds or less. They are not a threat to our communities. If this government continues to demonize marijuana and perpetuate the myth that the cannabis community is overrun by criminals, then it is likely they will exclude this community from participating in the legalized world. In which case all we will have achieved is a money-making venture for some, while leaving most others to face criminal sanction for refusing to leave the comfort of their underground world. In other words, we will have achieved nothing.